Albert Feuer has made available for download his article, “When May an Agent Act on Behalf of an ERISA Plan Participant or Beneficiary?”, which was published in the Journal of Pension Planning and Compliance. The Abstract is as follows:

This article discusses when a pension or welfare plan governed by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) may, and when it must, comply with directions of an attorney in fact under a state-law power of attorney or court-appointed guardians. ERISA and the regulations thereunder do not explicitly address the appointment of agents with respect to the exercise of any rights on behalf of an individual participant or beneficiary other than the ability of an agent to pursue benefit claims on behalf of the agent’s principal.

This article argues that an ERISA plan must defer to any agent acting on behalf of a participant or beneficiary under a state-law power of attorney or guardianship to the extent the individual is unable to exercise those ERISA benefit rights so that the individual is not deprived of those rights. This is the case whether the disability is a result of the individual being a minor, being an illiterate, being physically disabled, or lacking mental capacity. Moreover, the applicable state relief laws to encourage the acceptance of such powers would also probably be applicable to ERISA plans because such provisions are needed for the effective administration of power of attorney state laws for a disabled participant that ERISA does not otherwise preempt.

State law may authorize an individual to be the agent of an ERISA plan participant or beneficiary. This article discusses when ERISA permits such an individual, on behalf of the agent’s principal, to: (1) pursue a benefit claim; (2) obtain plan or benefit information; (3) determine the time and form of benefit payment; (4) determine to whom the plan makes a benefit payment; (5) make beneficiary designations; (6) consent to the waiver of the principal’s right to a spousal survivor benefit; (7) assign benefit rights and thereby create a beneficiary; (8) determine the amount, if any, of the principal’s employee contributions to the plan; (9) obtain information about the principal’s investment options; or (10) determine how to invest the principal’s plan assets. The article also discusses when ERISA and the Health Insurance Portability and Accountability Act (“HIPAA”) permit a state-law agent to (1) make healthcare decisions for the agent’s principal in ERISA healthcare plans, or (2) obtain information from a healthcare plan, or a healthcare reimbursement plan.

Download full article at When May an Agent Act on Behalf of an ERISA Plan Participant or Beneficiary? by Albert Feuer :: SSRN.

 

Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.